Summary
Dismissing the writ petitions, the Court
^HELD : (1). Having regard to the Memorandum of Association and the Rules of the Society, the respondent college is a State within the meaning of Article 12. The composition of the Society is dominated by the representatives appointed by the Central Government and the Governments of Jammu & Kashmir, Punjab, Rajasthan and Uttar Pradesh with the approval of the Central Government. The monies required for running the college are provided entirely by the Central Government and the Government of Jammu & Kashmir and even if any other monies are to be received by the Society, it can be done only with the approval of the State and the Central Governments. The Rules to be made by the Society are also required to have the prior approval of the State and the Central Governments and the accounts of the Society have also to be submitted to both the Governments for their scrutiny and satisfaction.The Society is also to comply with all such directions as may be issued by the State Government with the approval of the Central Government in respect of any matters dealt with in the report of the Reviewing Committee. The control of the State and the Central Governments is indeed so deep and pervasive that no immovable property of the Society can be disposed of in any manner without the approval of both the Governments. The State and the Central Governments have even the power to appoint any other person or persons to be members of the Society and any member of the Society other than a member representing the State or the Central Government can be removed from the membership of the Society by the State Government with the approval of the Central Government. The Board of Governors, which is incharge of general superintendence, direction and control of the affairs of the Society and of its income and property is also largely controlled by nominees of the State and the Central Governments. The State Government and by reason of the provision for approval, the Central Government also thus have full control of the work- 80ing of the Society and therefore, the Society is merely a projection of the State and the Central Governments. The voice is that of the State and the Central Governments. The Society is an instrumentality or the agency of the State and the Central Governments and it is an "authority" within the meaning of Article 12. If the Society is, an "authority"and, therefore, the "State" within the meaning of Article 12, it must follow that it is subject to the constitutional obligation under Article 14. [99F-H, 100 K-F](2) The expression "other authorities", in Article 12 must be given an interpretation where constitutional fundamentals vital to the maintenance of human rights are at stake, functional realism and not facial cosmetics must be the diagnostic tool, for constitutional law must seek the substance and not the form. The Government may act through the instrumentality or agency of juridical persons to carry out its functions, since, with the advent of the welfare State its new task have increased manifold. [90B-D]It is, undoubtedly, true that the corporation is a distinct juristic entity with a corporate structure of its own and it carries on its functions on business principles with a certain amount of autonomy which is necessary as well as useful from the point of view of effective business management, but behind the formal ownership which is cast in the corporate mould, the reality is very much the deeply pervasive presence of the Government. It is really the Government which acts through the instrumentality or agency of the corporation and the juristic veil of corporate personality worn for the purpose of convenience of management and administration cannot be allowed to obliterate the true nature of the reality behind which is the Government. It is clear that if a corporation is an instrumentality or agency of the Government, it must be subject to the same limitations in the field of constitutional law as the Government itself, though in the eye of the law it would be a distinct and independent legal entity. If the Government acting through its officers is subject to certain constitutional limitations, it must follow a fortiorari that the Government acting through the instrumentality or agency of a corporation should equally be subject to the same limitations. If such a corporation were to be free from the basic obligation to obey the Fundamental Rights, it would lead to considerable erosion of the efficiency of the Fundamental Rights, for in that event the Government would be enabled to override the Fundamental Rights by adopting the stratagem of carrying out its functions through the instrumentality or agency of a corporation, while retaining control over it. The Fundamental Rights would then be reduced to little more than an idle dream or a promise of unreality. [91B-F]The Courts should be anxious to enlarge the scope and width of the Fundamental Rights by bringing within their sweep every authority which is an instrumentality or agency of the Government or through the corporate personality of which the Government is acting, so as to subject the Government in all its myriad activities, whether through natural persons or through corporate entities, to the basic obligation of the Fundamental Rights. The constitutional philosophy of a democratic socialist republic requires the Government to under take a multitude of socioeconomic operations and the Government, having regard to the practical advantages of functioning through the legal device of a corporation, embarks on myriad commercial and economic activities by resorting to the instrumentality or agency of a corporation, but this contrivance of carrying on such activities through a corporation cannot exonerate the Government from implicit obedience to the Fundamental Rights. To use the 81corporate methodology is not to liberate the Government from its basic obligation to respect the Fundamental Rights and not to override them. The mantle of a corporation may be adopted in order to free the Government from the inevitable constraints of red-tapism and slow motion but by doing so, the Government cannot be allowed to play truant with the basic human rights, otherwise it would be the easiest thing for the government to assign to a plurality of corporations almost every State business such as Post and Telegraph, TV, Radio, Rail, Road and Telephones-in short every economic activity-and thereby cheat the people of India out of the Fundamental Rights guaranteed to them. That would be a mockery of the Constitution and nothing short of treachery and breach of faith with the people of India, because though apparently the corporation will be carrying out these functions, it will in truth and reality be the Government which will be controlling the corporation and carrying out these functions through the instrumentality or agency of the corporation. Courts cannot by a process of judicial construction allow the Fundamental Rights to be rendered futile and meaningless and there by wipe out Chapter III from the Constitution. That would be contrary to the constitutional faith of the post-Menaka Gandhi era. It is the Fundamental Rights which along with the Directive Principles constitute the life force of the Constitution and they must be quickened into effective action by meaningful and purposive interpretation. If a corporation is found to be a mere agency or surrogate of the Government, "in fact owned by the Government, in truth controlled by the government and in effect an incarnation of the government,"the court must not allow the enforcement of Fundamental Rights to be frustrated by taking the view that it is not the government and, therefore, not subject to the constitutional limitations. Therefore, where a corporation is an instrumentality or agency of the Government, it is an authority within the meaning of Article 12 and, hence, subject to the same basic obligation to obey the Fundamental Rights as the government. [91G-H, 92A-G]R. D. Shetty v. The International Airport Authority of India & Ors., [1979] 1 S.C.R. 1042 and U.P. Warehousing Corporation v. Vijay Narain, [1980] 3 S.C.C. 459, followed.(3) The test for determining as to when a corporation can be said to be an instrumentality or agency of Government may be culled out from the judgment in the International Airport Authority's case. They are not conclusive or clinching, but they are merely indicative indicia which have to be used with care and caution, because while stressing the necessity of a wide meaning to be placed on the expression "other authorities", it must be realised that it should not be stretched so far as to bring in every autonomous body which has some nexus with the Government with the sweep of the expression. A wide enlargement of the meaning must be tempered by a wise limitation. The relevant tests gathered from the decision in the International Airport Authority's case may be summarized as: (i) "One thing is clear that if the entire share capital of the corporation is held by Government it would go a long way towards indicating that the Corporation is an instrumentality or agency of Government. (ii) 'Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.' (iii) 'It may also be a relevant factor...... whether the corporation enjoys monopoly status which is the State conferred or State protected.' (iv) 'Existence of 'deep and pervasive State control may afford an indication that the Corporation is a state 82agency or instrumentality.' (v) 'If the functions of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation an instrumentality or agency of Government.' (vi) 'Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference" of the corporation being an instrumentality or agency of Government."[96F-H, 97A-D]It is immaterial for this purpose whether the corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the Government and not as to how it is created. The enquiry has to be not as to how the juristic person is born but why it has been brought into existence. The corporation may be a statutory corporation created by a statute or it may be a Government company or a company formed under the Companies Act, 1956 or it may be a society registered under the Societies Registration Act, 1860 or any other similar statute. Whatever be its genetical origin, it would be an"authority" within the meaning of Article 12 if it is an instrumentality or agency of the Government and that would have to be decided on a proper assessment of the facts in the light of the relevant factors. The concept of instrumentality or agency of the Government is not limited to a corporation created by a statute but is equally applicable to a company or society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the Government so as to come within the meaning of the expression "authority" in Article 12. [97F-H, 98A-B](4) Merely because a juristic entity may be an"authority" and, therefore, "State" within the meaning of Article 12, it may not be elevated to the position of"State" for the purpose of Articles 309, 310 and 311 which find a place in Part XIV. The definition of "State" in Article 12 which includes an "authority" within the territory of India or under the control of the Government of India is limited in its application only to Part III and by virtue of Article 36, to Part IV and it does not extend to the other provisions of the Constitution and, hence, a juristic entity which may be "State" for the purpose of Parts III and IV would not be so for the purpose of Part XIV or any other provision of the Constitution. [98B-D]S. L. Aggarwal v. Hindustan Steel Ltd., [1970] 3 S.C.R.365; Sabhajit Tewary v. Union of India & Ors., [1975] 3,S.C.R. 616 and Sukhdev Singh v. Bhagat Ram, [1975] 3 S.C.R.619, explained and distinguished.(5) Article 14 must not be identified with the doctrine of classification. What Article 14 strikes at is arbitrariness because any action that is arbitrary, must necessarily involve negation of equality. The doctrine of classification which is evolved by the courts is not para- phrase of Article 14 nor is it the objective and end of that Article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions, namely, (1) that the classification is founded on an intelligible differentia and (2) that differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action, the impugned legislative or executive action, would plainly be arbitrary and the guarantee of equality under Article 14 would be breached. Wherever, therefore, there is arbitrariness in State action whether it be the 83legislature or of the executive or of an "authority" under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution. [100G, 102D-F]E.P. Royappa v. State of Tamil Nadu, [1974] 2 S.C.R.348; Maneka Gandhi v. Union of India, [1978] 2 S.R. 621 and R. D. Shetty v. The International Airport, Authority of India, & Ors., [1979] 1 S.C.R. 1042, applied.(6) The procedure adopted by the respondent Society cannot be regard as arbitrary merely because it refused to take into account the marks obtained by the candidates at the qualifying examination but chose to regulate the admissions by relying on the entrance test. The entrance test facilitates the assessment of the comparative talent of the candidates by application of a uniform standard and is always preferable to evaluation of comparative merit on the basis of marks obtained at the qualifying examination, when the qualifying examination is held by two or more different authorities, because lack of uniformity is bound to creep into the assessment of candidates by different authorities with different modes of examination. [103A-B, D-F](7) The oral interview test is undoubtedly not a very satisfactory test for assessing and evaluating the capacity and calibre of candidates, but in the absence of any better test for measuring personal characteristics and traits, the oral interview test must, at the present stage, be regarded as not irrational or irrelevant though it is subjective and based on first impression, its result is influenced by many uncertain factors and it is capable of abuse. In the matter of admission to college or even in the matter of public employment, the oral interview test as presently held should not be relied upon as an exclusive test, but it may be resorted to only as an additional or supplementary test and, moreover, great care must be taken to see that persons who are appointed to conduct the oral interview test are men of high integrity, calibre and qualification. [106C-E]R.Chitra Lakha and Others v. State of Mysore and Others, [1964] 6 S.C.R. 368, followed.(8) Having regard to the drawbacks and deficiencies in the oral interview test and the conditions prevailing in the country, particularly when there is deterioration in moral values and corruption and nepotism are very much on the increase, allocation of a high percentage of marks for the oral interview as compared to the marks allocated for the written test, is not free from the vice of arbitrariness.The allocation of as high a percentage as 33 1/3 of the total marks for oral interview suffers from the vice of arbitrariness. [107A-D]The court, however, to avoid immense hardship being caused to those students in whose case the validity of the selection cannot otherwise be questioned and who have nearly completed three semesters and taking into consideration the fact that even if the petitioners are ultimately found to be deserving of selection on the application of the proper test, it would not be possible to restore them to the position as if they were admitted for the academic year 1979-80, which has run out long since declined to set aside the selection made. The Court was, however, of the view that under the existing circumstances.84 allocation of more than 15% of the total marks for the oral interview would be arbitrary and unreasonable. [107G-H, 108A-F]A. Peeriakaruppan v. State of Tamil Nadu, [1971] 2S.C.R. 430; Miss Nishi Meghu v. State of Jammu & Kashmir & Ors., [1980] 3 S.C.R. p. 1253, applied.(9) There can be no doubt that if the interview did not last for more than two or three minutes on an average and the questions asked had no bearing on the factors required to be taken into account the oral interview test would be vitiated, because it would be impossible in such an interview to assess the merit of a candidate with reference to these factors. Here the absence of proper affidavit by the members of the committee to the contrary leads to the only conclusion that the selection made on the basis of such test must be held to be arbitrary. However, if the marks allocated for the oral interview do not exceed 15% of the total marks and the candidates are properly interviewed and relevant questions are asked with a view to assessing their suitability with reference to the factors required to be taken into consideration, the oral interview test would satisfy the criterion of reasonableness and non- arbitrariness. Further it would be desirable if the interview of the candidates is tape-recorded, for in that event there will be contemporaneous evidence to show what were the questions asked to the candidates by the interviewing committee and what were the answers given and that will eliminate a lot of unnecessary controversy besides acting as a check on the possible arbitrariness of the interviewing committee. [109A-B, D-E, F-H]See the full content of this document
Extract
Ajay Hasia Etc. VS. Khalid Mujib Sehravardi & Ors. Etc.
PETITIONER: AJAY HASIA ETC.Vs.RESPONDENT: KHALID MUJIB SEHRAVARDI & ORS. ETC.DATE OF JUDGMENT13/11/1980BENCH: BHAGWATI, P.N.BENCH: BHAGWATI, P.N.CHANDRACHUD, Y.V. ((CJ)KRISHNAIYER, V.R.FAZALALI, SYED MURTAZAKOSHAL, A.D.CITATION: 1981 AIR 487 1981 SCR (2) 79 1981 SCC (1) 722CITATOR INFO : R 1981 SC1009 (11,12)D 1981 SC1771 (3,6,9)F 1983 SC 130 (14)R 1983 SC 580 (9)F 1984 SC 363 (20)F 1984 SC 541 (8,13,14)F 1984 SC 873 (7,9,11)D 1984 SC1056 (7)RF 1984 SC1361 (19)F 1985 SC 364 (8)R 1985 SC1416 (94)R 1986 SC 596 (2)RF 1986 SC1370 (101)R 1986 SC1571 (59,69,105)E&D 1987 SC 454 (22,25)RF 1987 SC1086 (17,26)APL 1988 SC 469 (9,10,11,12)R 1988 SC1369 (11)R 1988 SC1451 (8)APL 1989 SC 88 (7)RF 1989 SC 341 (14)R 1989 SC 903 (32)F 1989 SC1642 (25)E 1989 SC1977 (7)APL 1990 SC 334 (104)R 1990 SC1031 (12)RF 1990 SC1277 (46)R 1990 SC1402 (29)RF 1991 SC 101 (32)RF 1992 SC 76 (2,8)F 1992 SC1858 (19)ACT: Admission to Engineering College-Jammu & Kashmir Regional Engineering College, Srinagar, registered as a society under the Jammu & Kashmir Registration of Societies Act, 1898-Whether a "State" under Article 12 of the Constitution and amenable to writ jurisdiction.Viva voce test-Interview of each of the candidates lasting only two or three minutes asking formal questions relating to the candidates parentage and residence and without any relevance to the subject for which marks were allocated, whether arbitrary-Allocation of 1/3 of the total marks required for the qualifying examination for the viva voce-Whether bad, unreasonable and arbitrary-Whether prescribing different admission procedures for candidates belonging to the State of Jammu & Kashmir and candidates belonging to other State is violative of the Equality Clause under Article 14.JUDGMENT: ORIGINAL JURISDICTION: Writ Petition Nos. 1304, 1262, 1119, 1118, 1574-75, 1373-74, 1244-45, 1230, 1494-97, 1566- 67, 1143, 1440, 1586, 1420-23, 1441-43, 1389, 1144, 1461, 1437-39, 1431, 1268, 1145, 1263 and 1331 of 1979.(Under Article 32 of the Constitution) Anil Dev Singh, Lalit Kumar Gupta, Subhash Sharma, C.P. Pandey and S. K. Sabharwal for the Petitioners in W.PS.1389, 1437-39, 1262, 1497, 1586, 1230 and 1263 of 1979.Y. S. Chitale, P. N. Duda, V. K. Pandita, R. Satish and E. C. Agarwala for the Petitioners in W.P. Nos. 1241-43, 1495-96, 1566-67, 1423, 1143-44,1118-19,1494, 1145 and 1331 of 1979.S. K. Bisiaria for the Petitioner in W.P. 1461/79.Rishi Kesh and B. Datta for the Petitioner in W.Ps.1373-74, 1304 and 1431/79.Y. S. Chitale, D. N. Tiku, E. C. Agarwala, M. Mudgal, Ashok Kaul and Vineet Kumar for the Petitioners in W.Ps.1244-45, 1420-22 and 1440/79.S.S. Khanduja for the Petitioners in W.Ps. 1268, 1574- 75/79.S. N. Kacker and Altaf Ahmed for the appearing Respondents.85 The Judgment of the Court was delivered byBHAGWATI, J. These writ petitions under Article 32 of the Constitution challenge the validity of the admissions made to the Regional Engineering College, Srinagar for the academic year 1979-80.The Regional Engineering College, Srinagar (hereinafter referred to as the College) is one of the fifteen Engineering Colleges in the country sponsored by the Government of India. The College is established and its administration and management are carried on by a Society registered under the Jammu and Kashmir Registration of Societies Act, 1898. The Memorandum of Association of the Society in clause 3 sets out the objects for which the Society is incorporated ...
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